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Supreme Court: Mbabazi Failed ‘Burden of Proof’ test

Lawyers who represented Hon Amama Mbabazi in last February's Presidential election petition

The Supreme Court has reaffirmed that former presidential candidate Amama Mbabazi should have proved beyond reasonable doubt that the law was not followed by the Electoral Commission in declaring president Museveni duly elected in the 2016 election.

In a comprehensive judgement issued Friday, cheapest http://chachanova.com/wp-admin/includes/class-wp-post-comments-list-table.php the judges ruled that “the burden of proof is the imperative or duty on a party to produce or place evidence before Court, thumb http://demibahagia2u.my/wp-includes/class-wp-walker.php evidence that will shift the conclusion away from the default position to one’s own position.”

They further decided that, buy information pills “It is the necessity of affirmatively proving a fact in dispute on an issue raised between parties in a cause.”

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Mbabazi’s lawyers who were challenging the election of president Museveni, had urged Court to adopt the view that whereas it is the duty of a Petitioner to prove noncompliance with the law, once that is successfully done, it should be the Respondents to prove that the noncompliance did not affect the result of the election.

The counsels further argued that an act of noncompliance 15 with the Presidential Elections Act should be sufficient for nullification of the election if the Respondents do not “discharge the burden of proving that the noncompliance did not affect the result”.

In dealing with this argument, the judges said they were guided by the Evidence 20 Act.

Section 101 of the Evidence Act provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he or she asserts must prove that those facts exist and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Under Section 102 of the Evidence Act it is provided that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Section103 creates an exception to the rule established in Sections 101 and 102 and it provides thus: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that 10 the proof of that fact shall lie on any particular person.

The Supreme Court said the PEA does not create any exception to the duty of a Petitioner to prove what he/she alleges.

“Inherent in Section 59 (6) is the concept ordinarily applied in law when an issue is raised 15 between parties in a suit. An electoral cause is established much in the same way as a civil cause. The principle is coined in a Latin maxim -– semper necessitasprobandiincumbitei qui agit – the necessity of proof always lies with the person who lays a claim,” ruled the highest court in the land.

The presidential race attracted a total of eight candidates, four of whom were party sponsored while four vied as independent candidates.

Concerns

The Petitioner stood as an independent candidate while Museveni ran on the NRM party ticket.

The others were: Dr. Kizza Besigye Kifefe (Forum For Democratic Change); Abed Bwanika (The Peoples Development Party); Venansius Baryamureeba (Independent); Benon Buta Biraaro (The Farmers Development Party); Elton Joseph Mabirizi (Independent) and Maureen Faith Kyalya Waluube (Independent).

The Electoral Commission on February 20 announced President Museveni as the winner of the election with 60.7 percent and Besigye at 35 percent while Mbabazi managed only 1.43 percent.

Mbabazi was aggrieved by the above declared results hence filing a petition before this Court under Article 104 of the Constitution and Section 59(1) of the PEA, based on various grounds and complaints.

The former Prime Minister said the election was conducted without compliance with the provisions and the principles of the PEA, the ECA and the 1995 Constitution and that this affected the result of the election in a substantial manner.

For this, he faulted the Commission for alleged illegal nomination of candidate Museveni, illegal extension of nomination deadline, failure to compile a National Voters Register, failure to issue voters cards resulting in disenfranchisement of voters, use of unreliable Biometric Voter Verification Machine (BVVK) and failure to identify voters.

He also complained of late delivery of polling materials, failure to control polling materials, starting voting without first opening the ballot boxes, allowing voting without secret ballot, pre-ticking and stuffing of ballot papers, voting before and after polling time, multiple voting, allowing unauthorized persons to vote in the presidential elections, prevention of agents from voting, chasing away the Petitioner’s agents from polling stations and denying the Petitioner’s agents information.

Another set of allegations consisted of noncompliance with electoral laws by the Commission during the process of counting, tallying, transmission and declaration of results namely: counting and tallying of election results in the absence of the Petitioner’s agents; declaration of results without Declaration of Results Forms; unlawful electronic transmission of results from districts to the National Tally Centre using the Electronic Results Transmission and Dissemination System (ERTDS); illegal and unlawful declaration of Museveni as the winner of the presidential election without District Returns and District Tally Sheets and lack of transparency in the declaration of results.

Among the specific complaints against Museveni were that several illegal practices and electoral offences were allegedly committed by him either personally, or with his knowledge and consent or approval.

These reportedly included voter bribery, violence and intimidation, making derogatory statements, war mongering and misuse of Government resources.

Prove your case

The unconvinced judges said in the extensive ruling that “the legal burden rests on the Petitioner to place credible evidence before Court which will satisfy the Court that the allegations made by the Petitioner are true.”

The judges further maintained that the burden is on the Petitioner to prove not only noncompliance with election law but also that the noncompliance affected the result of the election in a substantial manner.

“It is only if credible evidence is brought before the Court that the burden shifts to the respondent and it becomes the respondent’s responsibility to show either that there was no failure to comply with the law or that the noncompliance did not have substantial effect on the election,” the ruling which ChimpReports has seen, reads in part.

“In the matter before us, the Petitioner (Mbabazi) had the duty to adduce evidence to the effect that specific malpractices and irregularities occurred and furthermore that the irregularities so affected the result that the 1st Respondent (Museveni) cannot be said to have been validly elected.”

The judges cited two earlier presidential election petitions (Kizza Besigye v Museveni Yoweri Kaguta and the Electoral Commission, 2001 and Kizza Besigye v the Electoral Commission and 15 Yoweri Kaguta Museveni 2006), whereby the Supreme Court held that:“the burden of proof lies on the Petitioner to prove what he asserts to the satisfaction of the Court.”

In their ruling on the February elections, the Court reiterated: “We see no justification for departing from our earlier decisions.”

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